Ontario rollback to sex-ed curriculum prompts legal challenges

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Ontario legislature. Photo: Joseph Morris/Flickr

Though the Ontario provincial election was only six months ago, the array of changes (or "rollbacks") ushered in by the Ford regime is dizzying: from backtracking on the cap-and-trade program to cancelling the basic income pilot project, the government has wasted little time in cracking down on the initiatives undertaken by its predecessor. The government's announcement in July that the province would be scrapping the modernized sexual education curriculum developed by the Liberal government in 2015 and returning to the 1998 curriculum pending further consultations falls squarely in line with this trend.  

The 2015 Health and Physical Education Curriculum, which includes a sexual education component, was developed following extensive consultation with parents, educators and social workers, with the stated aim of supporting students' cognitive, emotional, social and physical development, and promoting their mental health, resilience and overall state of well‑being. Topics around sexual health include delaying sexual activity, preventing pregnancy and disease, understanding how gender identity and sexual orientation affect overall identity and self-concept, and making decisions about sexual health and intimacy. By contrast, the 1998 Health and Physical Education Curriculum ‑- which is about a fifth of the size of the revised curriculum -‑ couches the discussion of sexual health in the broad topic of "growth and development," which has a general understanding of sexuality, with no specific reference to gender identity or sexual orientation.

Both curricula are intended for grades 1 to 8. The government's decision to revert back to the 1998 curriculum has prompted considerable backlash from educators, parents and students, and has also prompted four separate legal challenges, discussed below.

Human rights applications

In August, the families of six elementary school students, including an 11‑year-old transgender student, filed an application with the Human Rights Tribunal of Ontario (HRTO) alleging that the reinstatement of the old curriculum is discriminatory on grounds of sexual orientation, gender identity and gender expression. In October, the Ontario Human Rights Commission announced it would be intervening in this challenge on the basis that the interim curriculum imposed by the government "fails to reflect and adequately address the needs of LGBTQ+ students and their families, and eliminates key information about consent, which places students at greater risk of sexual violence." The human rights commission is seeking an order from the human rights tribunal for the province to revert back to the 2015 curriculum, or introduce concepts of sexual orientation, gender identity and gender expression into the curriculum.

A second human rights application was filed in September by two transgender youth of high school age, one of whom recently noted: "If heterosexual students are getting the sexual education they need to have safe sex and make proper decisions about that, and (LGBTQ) students are not receiving that education, what they are learning does not apply to them at all." The applicants in that case also note that even if high school students continue to follow the previous curriculum, the lack of education on gender identity for students in grades 1‑8 affects trans youths' sense of safety.

Application for judicial review

In addition to the student‑led human rights challenges, the Canadian Civil Liberties Association (CCLA) and an individual applicant acting as litigation guardian for her daughter have filed an application to the Divisional Court seeking judicial review of the government's decision to revert back to the old curriculum, and an injunction -‑ or urgent order ‑- requiring them to direct teachers to continue teaching the 2015 curriculum pending the hearing of the full application. McFarlane, the individual applicant, is a queer parent and a director at the 519 Centre, a Toronto‑based advocacy and support centre for the LGBTQ+ population. In her affidavit, McFarlane states that the discussion of queerness and different family structures -‑ topics missing from the 1998 curriculum -‑ fosters a safe and respectful environment, protects against homophobia, and the isolation of queer students and queer families. McFarlane expresses concern for her daughter's safety and the safety of other young women, who are disproportionately targeted with violence as a result of the reversion to the old curriculum. The CCLA affidavit includes an assortment of data from various organizations about consent, modern technology, sexual diversity and gender‑based violence.

Elementary Teachers' Federation of Ontario

The Elementary Teachers' Federation of Ontario (ETFO), which represents 80,000 school teachers in Ontario, has also filed an application for judicial review of the government's decision. While it seeks an injunction requiring a return to the 2015 curriculum, the grounds of the ETFO application differ slightly from those of the CCLA: they argue that the reinstatement of the former curriculum infringes the right of teachers to freedom of expression guaranteed under the Charter of Rights and Freedoms (Section 2) and students' rights to safety (Section 7) and freedom from discrimination (Section 15). The ETFO application also attacks the government's establishment of a "reporting line," which requires students/parents to report those teachers who continued to use the 2015 curriculum on the basis that this decision unreasonably infringes the Charter‑protected rights of teachers and violates principles of natural justice. The ETFO's Notice of Application states that teachers owe ethical and professional obligations to their students, and that the minister's directive prohibiting teachers from teaching up-to-date, relevant information about sexual orientation, gender identity, same‑sex relationships, HIV, consent and online safety risks breaching the duty owed to students.

It is anticipated that both the CCLA and ETFO's applications will be heard by the courts in early January 2019.

What's next?

The strength of these applications will depend in large part upon the quality of evidence presented. To successfully demonstrate a breach of the Charter‑protected rights to security and freedom from discrimination, the applicants will need evidence to show that the reversion to the 1998 curriculum does, in fact, risk increasing the risk of physical and sexual violence, and further, that it discriminates against LGBTQ+ students by excluding discussion of gender identity and sexual orientation from the curriculum. We anticipate that the province, too, will have expert testimony to refute these points -- we will watch these decisions with great interest in the new year.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to [email protected]. Read past Pro Bono columns here.

Photo: Joseph Morris/Flickr

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